TIPTON, J.
We have come to the conclusion that the statement of facts and the ruling on the demurrer to the evidence of the divisional opinion by Commissioner Hyde are correct and will adopt the same without the use of quotation marks.
This is an action for personal injuries, sustained by plaintiff when a truck, driven by him, was struck by defendant’s train. The ease
was submitted solely upon negligence under the humanitarian doctrine failing
to
sound an audible warning and to slacken speed. Plaintiff had a verdict and judgment for '$20,000. Defendant has appealed from this judgment.
Defendant contends that its demurrer to the evidence at the close of the case should have been given because there was no ease made Elder the humanitarian rule. The evidence, viewed in the light most favorable to plaintiff, tended to show the facts and circumstances hereinafter stated. On April 8, 1933, plaintiff driving his truck, loaded with ashes, east on Talcott Avenue in the city of St. Louis, approached its intersection with MeKissock Avenue, which runs north and south across Talcott Avenue. Edward Wisa was riding with him, sitting on the right (south) side of the car. Defendant had its two main tracks laid along the east side of MeKissock Avenue, and these tracks were straight for several blocks south. There were some store buildings along the west side of MeKissock Avenue with an unpaved cinder roadway between them and these tracks. Talcott Avenue was forty feet wide from curb to curb paved with brick and ran slightly downgrade to the east. At the southwest corner of the intersection there was a barbecue stand which extended east beyond the other buildings on the west side of MeKissock Avenue. It was twenty-six feet from the west building line of MeKissock Avenue to the west rail of defendant’s western track, which was used for the southbound trains. It was thirty-nine feet from this building line to the west rail of defendant’s eastern track, used for northbound trains. The space between the northbound and southbound track was about eight feet. Plaintiff said that he drove into the intersection and stopped when he was about three feet east of the west side of the barbecue stand where he had a view both ways on MeKissock Avenue and looked first north and then south. He said he neither saw nor heard a train and started up to cross the tracks.
It was a few minutes after seven p. m. Plaintiff said that it was dark and that he had the lights on his truck burning. He said a lighted object could be seen 250 to 300 feet. On that day, the sun set at six-thirty-one p. m., with the sky partly cloudy. There had been sprinkles of rain around six p. m. There was a street light at the northwest corner of the intersection and another at the southeast corner. These lights reflected light over an area with a radius of about fifty feet. There was a street light 158 feet south of the intersection on the west side of MeKissock Avenue and another on the east side 283 feet south. There were also two street lights at the next street intersection, which was 448 feet south. There were crossing gates on Talcott Avenue but they were not operated after six p. m.
Plaintiff changed gears and started, driving about eight or ten feet from the south side of Talcott Avenue, first moving about two miles per hour, then increased his speed until he was going between five and
six miles per hour. He did not look south again until his fi'ont wheels were about in the middle of the space between the two tracks, when Y7isa yelled that a train was coming. Then he saw “the buiV of the engine ’ ’ coming north on the eastern track, from sixty to seventy-five feet south of him. Wisa jumped out of the truck and escaped injury by running across the track in front of the train. Plaintiff swerved the truck to the left (north) but, while he was trying to get out oí* the way, the right front wheel of his truck got over the western rail of the track on which the train was approaching. The left corner of the pilot beam and cylinder of the engine struck the side or rear of his truck immediately after he started to turn and he was injured. He said: “I swerved immediately, if the engine had slowed down a bit I could have turned out of its path.” Plaintiff and Wisa both said that there was no headlight on the engine and that there was no warning given by either whistle or bell. Plaintiff said that his brakes were in good shape and that he could have stopped his truck in eight or ten feet at the speed he was traveling- when he “got notice that the train was coming. ’ ’
Plaintiff also had three other witnesses, who were standing near a store, on the west side of McKissock Avenue, about seventy-five feet south of the intersection and about twenty-five feet from the track. They said that they first saw the train when it was about 100 feet south of the crossing; that it had no headlight burning; that it did not ring the bell; and that it did not sound the whistle. One of those men said that after the collision the light on the rear of the tender was on, but was dim; and that he saw one of the trainmen working on the engine headlight which was not lighted. Plaintiff’s witnesses estimated the speed of the train at from 30 to 40 miles per hour. They said there were about twelve or fifteen cars in defendant’s train (defendant showed seventeen); and that after the train struck plaintiff’s truck, it was brought to a stop with the engine south of the next street intersection to the north and with some of the rear cars still south of the Talcott Avenue intersection.
Defendant’s evidence was that the headlight of the engine was on; that the automatic bell ringer was ringing the bell all the time after they started about a mile south of the place of the collision; that four whistles were sounded about the middle of the block between Talcott Avenue and the street south of it; that whistles were also blown for street intersections farther south; that plaintiff’s truck was going from fifteen to twenty miles per hour; and that their speed was about fifteen miles per hour. The members of the train crew said that defendant’s switch foreman was riding on the front pilot beam of the engine carrying a lighted lantern; that the engineer was on the right (east) side of the cab; that the fireman was on the left side, from which plaintiff apprpached; and that the head brakeman was on the front car. The engineer said he stopped the 'train before
the engine reached the next street north. The fireman said the train ran “about five ear lengths . . . about two hundred and forty, fifty feet at the most.”
Defendant’s engineer did not see plaintiff coming. He said: “As I was crossing Taleott Avenue, I noticed the foreman practically jump off or fall off of the front end of the engine. . . . And I used all the braking power I had, to stop, on account of him. I didn’t know what was the matter.” He also “saw a man run across the track ahead of the engine . . . just a few feet.” He said that within 100 feet he probably could g’et the speed of the train down from thirty miles per hour to fifteen miles per hour, but that he did not think it could be done in fifty feet. The switch foreman said that approaching Taleott Avenue he ‘! seen the truck there. It looked like he was going to try to beat us across. ... He couldn’t get across and he started up the eastbound main and we hit him about twenty-five feet over the crossing on the left side.” He also said that it was light enough to “see a couple of blocks ahead” and that he did not know whether the headlight was “on or not on.” The fireman said that at Taleott Avenue “the truck come out from behind this barbecue stand. It seemed to me he was going to make a full turn the way he was coming there about, I would say, fifteen to eighteen miles an hour, to the best of my knowledge; he was going to make a full turn to the west of both main lines. I reached over to view the water glass to see how my water was running, and steam. . . . Swung my head back. He just about had the crossing, lacking, I would say, three or four feet, to the best of my knowledge, and found out he couldn’t make it and swung around in the eastbound main track.” He further stated that plaintiff was “hugging the south curb, swinging out from the barbecue stand;” and that when it was struck “we didn’t have but very little to hit the curb on the north side of the crossing.” The head brakeman also said: “I seen the truck coming down Taleott, going east on Taleott. It looked to me like as if he w^as trying to beat us across the track and he seen he couldn’t and headed north to avoid striking* us.” He further testified: “Q. This fellow turned to the left ? A. Turned, headed north. Q. II<3 didn’t .slow dowm? A. No, he didn’t have time. . . . Q. The engine caught the extreme right rear corner of his truck. If the engine had slowed down it w^ould have let him get that last foot of his truck out of your way. Isn’t that right? A. Yes, sir.”
I. We think that the facts above stated amounted to substantial evidence tending to show that plaintiff drove upon defendant’s track, oblivious to the approach of its train, and that defendant’s fireman saw or by the exercise of ordinary care could have seen that plaintiff was oblivious and was about to go into a position of imminent peril of being struck by the train, in sufficient time to have thereafter (after plaintiff’s obliviousness and purpose to continue im
mediately into a position of imminent peril became reasonably ap parent) with the means at hand warned plaintiff, or to have enabled the engineer to warn him, soon enough so that he could.have stopped before reaching a place where the train would strike him. The fireman said that he saw plaintiff’s truck come out from behind the barbecue stand. He must have at least seen plaintiff when he started up from his stop near the west side of the barbecue stand, if he did stop and the jury was entitled to believe that he did, if he saw him at that point. Then if he had continued to watch him instead of looking away he would have seen him under way at two miles an hour and increasing his speed as he proceeded, to between five and six miles per hour. The fireman said that he could start the bell ringing with the bell rope. He said it was ringing, but that too was for the jury. He could either have done that or called to the engineer in time for him to have sounded the whistle if he could not have reached it himself. [Herrell v. St. Louis-San Francisco Railroad Co., 322 Mo. 551, 18 S. W. (2d) 481; Chawkley v. Wabash Railroad Co., 317 Mo. 782, 297 S. W. 20.] If plaintiff started toward the track from a stop, or even if the fireman saw that he was increasing his speed, that would be some indication that he was oblivious to the approach of the train and intended to continue across the track. To be free from negligence under the humanitarian doctrine one must act on reasonable appearances at a time when action would be effective. ,[Womack v. Missouri Pacific Railroad Co., 337 Mo. 1160, 88 S. W. (2d) 368, and cases cited.] Such a case as Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S. W. (2d) 600, cited by defendant, where the plaintiff drove slowly in a street intersection, without increasing speed or otherwise giving any appearance of intention to cross in front of defendant’s street car, may be distinguished from this case on the ground that there was nothing in plaintiff’s appearance there, from which it would reasonably appear that he “was oblivious of his danger or that he intended to drive his truck upon the track in front of the approaching street car.” Starting from a stop toward a railroad track and moving at continuously increasing speed has a different appearance, as to obliviousness, than driving at the same slow rate of speed into and through a street intersection. The trainmen, who did watch plaintiff all the time said that it looked to them like he was going to try to beat the train across, so that he evidently did give the appearance of an intention to continue across the track.
Plaintiff’s truck traveled more than thirty feet from where it was stopped before it reached the point between the tracks where he saw the train. This took four seconds or more, since it was not traveling at the maximum speed reached of about five miles per hour all of the time. During that time the train going at thirty miles per hour would have traveled at least 175 feet, and was still sixty to
seventy-five feet south of the crossing. It did not strike plaintiff until after he reached the eastern track, turned, and drove to the north. If the train was going faster, it could have traveled 200 feet or more, but the trainmen said that they could see a couple of blocks and 200 feet was less than one block. If they were running in the dusk without a light and plaintiff did have lights, that would have been some reason for them to believe that he was oblivious of their approach. "We can only say that there is no case to be submitted to the jury under the humanitarian rule “if a given case in that regard is so plain that average fair-minded men cannot reasonably differ about it. . . . But if there is a ground for fair difference of opinion about it, then the question is for the jury.” [Ellis v. Metropolitan Street Ry. Co., 234 Mo. 657, 138 S. W. 23; Logan v. C., B. & Q. Railroad Co., 300 Mo. 611, 254 S. W. 705; Homan v. Missouri Pacific Railroad Co., 334 Mo. 61, 64 S. W. (2d) 617; see, also, 335 Mo. 30, 70 S. W. (2d) 869; Kloeckener v. St. Louis Public Service Co., 331 Mo. 396, 53 S. W. (2d) 1043.] We hold that there was a submissible humanitarian case of failure to warn.
We also hold that there was substantial evidence to warrant submission upon the ground of failure to slacken speed. It is a reasonable inference from the evidence most favorable to plaintiff that he was almost successful in getting his truck out of the way by driving to the north along the track ahead of the train. [See Hoelzel v. C., R. I. & P. Railroad Co., 337 Mo. 61, 85 S. W. (2d) 126.] There would be no better evidence of what could have been done than what was actually done. Defendant’s evidence was that the engineer did not start to put on the brakes until after a switch foreman jumped off the engine, at the crossing, to escape injury from a collision and that the train was nevertheless brought to a complete stop with the engine not more than 250 feet north of Talcott Avenue. Plaintiff’s evidence was that he made the turn to the north after he saw the train about seventy-five feet from him. Thereafter, Wisa did have time to jump out of the truck and run across the track in front of the train to a place of safety. Since this street was 40 feet wide and plaintiff was crossing near the south side, if he ivas struck near the north side, it ivould not be unreasonable for the jury to believe that he traveled twenty or twenty-five feet to the north before the engine hit him. That would mean that he traveled from fifty-five to sixty feet altogether after starting up from the barbecue stand, and that the train traveled at least 100 feet, after he discovered it, before it struck him. They could have found, therefore, that there was as much as six or seven seconds in which to slacken the speed of the train, during which time it could have traveled from 275 to 300 feet. Of course, had warning been given immediately after plaintiff was seen to start toward the track, it probably would not have been .necessary to slacken speed but, as the distance to the track was short, it
was for the jury to consider whether the circumstances required and made it reasonable to do either one or the other. • [See State ex rel. Wabash Railroad Co. v. Bland, 313 Mo. 246, 281 S. W. 690.] If the train did stop in 250 feet from the point of collision,, since there was evidence that its speed could have been reduced from thirty miles per hour to 'fifteen miles per hour in about 100 feet after the brakes were applied, and since only the left side of the pilot beam and cylinder struck the rear or side of the truck, we do not think we would be justified in holding, as a matter of law, that fair-minded men could not reasonably differ as to whether there was time for the engineer to slacken the speed, so that plaintiff could have escaped with his truck, had the fireman continued to watch plaintiff and immediately informed him of the peril after he could have then seen plaintiff approaching the track, apparently intending to cross, oblivious to the oncoming train. [Maginnis v. Missouri Pacific Railroad Co., 268 Mo. 667, 187 S. W. 1165; Steger v. Meehan (Mo.), 63 S. W. (2d) 109; Martin v. Fehsc, 331 Mo. 861, 55 S. W. (2d) 440; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S. W. (2d) 809; Bollinger v. St. Louis-San Francisco Railroad Co., 334 Mo. 720, 67 S. W. (2d) 985; Hencke v. St. L. & H. Railroad Co., 335 Mo. 393, 72 S. W. (2d) 798; Todd v. St. Louis-San Francisco Railroad Co. (Mo.), 37 S. W. (2d) 557; Hoelzel v. C., R. I. & P. Railroad Co., supra; Kloeckener v. St. Louis Public Service Co., surpa; Alexander v. St. Louis-San Francisco Railroad Co., 327 Mo. 1012, 38 S. W. (2d) 1023.] We, therefore, hold- that the court properly overruled defendant’s demurrer to the evidence.
II. Defendant also contends that plaintiff’s main instruction (No. I) was erroneous. ' This instruction, after requiring the finding of the collision and plaintiff’s injuries continued as follows:
“And if you further find that at and prior to the collision aforesaid the plaintiff and the said automobile truck were approaching and in a position of imminent peril of being thus struck and injured by said train and that the defendant saw, or by the exercise of ordinary care on its part could have seen plaintiff and said automobile truck approaching and in a position of imminent peril of being struck as aforesaid, if you do so find, in time thereafter for the defendant in the exercise of ordinary care with the means and appliances at hand, and with reasonable safety to said train and the persons thereon, to have slackened the speed of said engine, and to have sounded an audible warning of its approach and proximity and that by so doing, if you so find, said collision and the injury to plaintiff would thus and thereby have been avoided; and if you further find that the defendant did fail to slacken the speed of said engine under the circumstances aforesaid, if you do find, and that the defendant did fail to sound an audible warning of the approach of said engine, and its proximity under the circumstances aforesaid, if you do ,so
find, and that in thus failing, if you so find, the defendant did fail to exercise ordinary care and was guilty of negligence, and that the plaintiff was injured as a direct and proximate result of the aforesaid negligence on the part of the defendant (if you find that under the circumstances aforesaid the defendant did fail to slacken the speed of its engine, and to give an audible warning of its. approach and proximity) then your verdict will be in favor of the plaintiff.”
The objections leveled at this instruction are that (1) it failed to require a finding that plaintiff was not aware of the approach of'the train (obliviousness); (2) that it failed to require a finding as to where the position of imminent peril began; and (3) that it failed to require a finding that the speed of the train could have been slackened in time (after plaintiff was or could have been in peril) to have avoided a collision. A mere reading of the instruction will show there is no merit to the latter objection.
In the case of Banks v. Morris & Co., 302 Mo. 254, 257 S. W. 482, l. c. 484, we held that the constitutive.facts under the humanitarian rule are as follows:
“ (1) Plaintiff was in a position of peril; (2) defendant had notice thereof (if it was the duty of defendant to have been on the lookout, constructive notice suffices); (3) defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; (4) he failed to exercise ordinary care to avert such impending injury; and (5) by reason thereof plaintiff was injured.”
“Under this doctrine ‘the position of peril’ is one of the basic facts of liability, it might be denominated the chief one. [State v. Trimble, 253 S. W. 1014, 1019.] It is of no consequence what brings about or continues the situation of peril. It may be through the obliviousness of the one imperiled, or through his inability to extricate himself from his environment, or through his efforts to rescue another, or through his sheer hardihood or recklessness.” [Banks v. Morris & Co., supra.]
A plaintiff in his petition need only plead the ultimate facts relied on to state his cause of action. It is not necessary for him to plead his evidence, in fact, good pleading requires the evidence by which the pleader proves the ultimate facts of his cause of action be eliminated from his pleading. [Mooney v. Monark Gasoline & Oil Co., 317 Mo. 1255, 298 S. W. 69.]
From the above formula it is unnecessary for a plaintiff to plead that he was oblivious to his peril. As to what caused the peril is a matter that the plaintiff must show by his evidence. If obliviousness is the cause of his peril, it is necessary for him to prove it.
“In some instances obliviousness of danger on the part of the plaintiff is necessary to make the situation in which he is placed one of peril. In such eases it is of course incumbent upon the plaintiff to
make proof of tbe facts and circumstances tending to show obliviousness, not only for tbe purpose of establishing that he was in a position of peril, but to bring home-to defendant a knowledge of his peril.
In these cases, however, obliviousness is b'ut a subsidiary or evidentiary fact, the perilous situation of plaintiff and the defendant’s knowledge of it are the ultimate, issuable facts. Such facts and only such facts must be pleaded. Matters of evidence have no place in a pleading. This is elementary Icm.”
[Banks v. Morris & Co., supra.] (Italics ours.)
As the petition in a case under the humanitarian rule does not have to allege “obliviousness,” “the necessary corollary thereto is that the instructions do not have to cover anything which the pleadings do not cover.” [Karte v. J. R. Brockman Mfg. Co., 247 S. W. 417, also, Wenzel v. Busch, 259 S. W. 767.]
This instruction does require the jury to find that the plaintiff was in “a position of imminent peril,” and that was the ultimate or issuable fact for the jury to determine. It is true the words ‘ ‘ imminent peril (are) not defined. These are ordinary English words and require no definition.” [Bryant v. Kansas City Rys. Co., 286 Mo. 342, 228 S. W. 472.]
We have not been cited to a single case that holds that it is error if the instruction fails to require the jury to find the plaintiff was oblivious to his danger when the instruction required the jury to find that the plaintiff was in a position of peril.
In the case of Karte v. J. R. Brockman Mfg. Co., 247 S. W. 417, 423, we said:
“Counsel for defendant also contends that the petition did not state a cause of action, because it failed to state that deceased was oblivious to the approaching danger, and that plaintiff’s Instruction A was erroneous, because it did not require the jury to find that the deceased was oblivious to the danger that was approaching him.
. . . The existence of such a rule would require the plaintiff to plead that deceased was not guilty of contributory negligence, which is not the law of this State. This is so well settled that the citation of authorities is wholly unnecessary, and the necessary corollary thereto is that the instructions do not have to cover anything which the pleadings do not cover.
“The same doctrine is sometimes stated in this language: The petition must state facts sufficient to constitute a cause of action, and the evidence must prove the existence of those facts and the instructions must submit those facts to the jury. The instructions must not be broader nor narrower than the petition; if they require more to be proven than those stated in the petition, then they are erroneous as to plaintiff, because they require him to prove more than the law requires him to do, or if the instructions should permit him to prove less than the petition must state to constitute a cause of action,
then they would be erroneous, in so far as the defendant is concerned, for under such state of facts the plaintiff would not be required to prove some of the facts which constitute a cause of action, and which under the law must be stated in the petition.
"The foregoing observations are almost self-evident, and need no further argument.”
In the ease of Wenzel v. Busch, 259 S. W. 767, 770, we said:
‘ ‘ If the plaintiff was not oblivious to his danger of being struck by the automobile, but ivas aware of it, and could by the exercise of ordinary care have escaped therefrom; and failed to do so, he was guilty of contributory negligence which would bar his recovery, but it was not necessary for him to allege he was free from such contributory negligence; that was a matter which defendant must allege and prove. Consequently, it was not required that the petition should state that plaintiff was oblivious to his position of peril or danger. We have recently so ruled, and do not wish to recede from that ruling. [Karte v. Brockman (Mo.), 247 S. W. 417.]
"As to plaintiff’s Instruction No. 2. The instruction follows the petition and reads:
" ‘If you further find from the evidence that said Birsehkus, by keeping a vigilant watch, if you find from the evidence he failed to do so, would have seen plaintiff on or moving toward the portion of said street over which said automobile was about to be operated and in peril of being struck thereby, if such you find from the evidence, and in the exercise of ordinary care in stopping said-automobile, etc., could have avoided injury to plaintiff, your verdict will be in favor of the plaintiff . . . and the fact alone, that plaintiff was negligent, will not prevent his being entitled to a verdict, if you find him otherwise entitled to a verdict, under this instruction. ’
“For the same reason that the petition need not allege plaintiff was oblivious and could not extricate himself and thereby caused plaintiff to assume the burden of disproving contributory negligence, said instruction need not do so. It was therefore not erroneous in'the matter complained of by the appellants. ’ ’
In the case of Jordan v. St. Joseph Ry., L., H. & P. Co., 335 Mo. 319, 73 S. W. (2d) 205, 208, we said:
"Unless plaintiff was oblivious to his peril, a warning signal could do no good. However, an examination of the instruction in question shows that it is not deficient in this respect. The instruction plainly requires a finding that the motorman not only saw, or should have seen, the plaintiff in a position of danger and imminent peril as he approached the street car track, but that the motorman also knew, or should have known, that the street car would collide with the automobile unless the motorman sounded the gong and thereby warned plaintiff of the proximity of such car. This expresses the idea conveyed by the term ‘ oblivious to his danger ’ even more forcibly than
would be done by the use of that term. Requiring the jury to find that plaintiff in approaching the street car track was oblivious to his danger, or rather that the motorman saw and knew he was so oblivious, would mean no more than that the motorman saw and knew that plaintiff was not going to stop before going upon the car tfack unless something was done to apprise plaintiff'of his peril, and this the instruction required the jury to find.”
In the case of Clark v. Atchison, T. & S. F. Railroad Co., 319 Mo. 865, 6 S. W. (2d) 954, 960, we said:
“In view of the evidence we see nothing wrong with Instruction 2. That Clark was in a position of imminent peril was a constitutive element of the cause of action, one of the ultimate facts which it was necessary for plaintiff to plead and prove . . . and which, of course, it was necessary for the jury to find in order to warrant a verdict in her (plaintiff’s) favor.”
In the ease of Montague v. Missouri & K. I. Railroad Co., 305 Mo. 269, 264 S. W. 813, is a case to the same effect.
The defendant relies upon the ease of Pentecost v. St. L. Merchants’ Bridge Terminal Railroad Co. et al., 334 Mo. 572, 66 S. W. (2d) 533. That case is not in point because it was ruled on the demurrer to the evidence. The propriety of an instruction was not involved. We held that the demurrer to the evidence should be sustained because the plaintiff was not oblivious of the approach of the train, and therefore, the defendant was not negligent, under the humanitarian rule, for its failure to- sound the whistle.
Instructions must all be read together, and if Instruction No. 1 was lacking in clearness in this respect, it was made clear by defendant’s Instruction No. 4 which required the jury to find “that plaintiff was not conscious of the approach of said train” and the persons in charge of said train knew such fact. [Jordan v. St. Joseph Ry., L., H. & P. Co., supra.]
Nor do we think the instruction is erroneous because it failed to require a finding as to where the position of imminent peril began. If we understand the defendant’s position correctly, it would require the court to instruct the exact place where the position of peril began. In other words, it would require the court to say in the instruction that under the circumstances plaintiff’s position of peril did not begin until he was within a certain distance from the track. The exact point where the position of peril began was for the jury to determine under the evidence.
In the case of Allen v. Kessler, 64 S. W. (2d) 630, 633, we said:
‘ ‘ The jury could well find that there was some place and time when, in the exercise of due care, the driver could and should have used the appliances at hand to avoid striking plaintiff by either giving a warning of his approach, checking the speed, or stopping the car.
. . . These were questions for the jury and its verdict meets with our approval.”
In the case of Kloeckener v. St. Louis Public Service Co., 331 Mo. 396, 53 S. W. (2d) 1043, 1044, we said:
“"Where the danger zone commenced was a question for the jury under the facts and circumstances of this case.”
"We hold that this instruction is not subject to the criticisms made by the defendant.
III. The defendant contends that the court erred in refusing to give the following instruction:
“The court instructs the jury, that the defendant railroad and its operators were not required by law both to ring the bell and to blow the whistle for the road crossing, but that the d'oing of either one on the occasion in question complied with the law.”
This instruction was properly refused, because we are here dealing with a cause of action under the humanitarian rule and not one based on primary negligence (violation of the statute). The former rule requires a warning to be given that will be given effective to overcome the plaintiff’s obliviousness. If the ringing of the bell is -not sufficient, then it is the duty of the trainmen to blow the whistle. [Rollison v. Wabash Railroad Co., 252 Mo. 525, 160 S. W. 994.]
I Y.. Plaintiff’s attorney, in his opening statement informed the júry he was suing for $35,000, and defendant assigns this as error. It is true we have held that the pleadings should not be read to the jury. Also, we have condemned the giving of an instruction which told the jury they cannot allow damages in excess of the amount sued for in the petition. We see no error, for plaintiff’s attorney to state the amount asked for in the petition in the opening statement. It was only the statement of an advocate, and is not on the same footing as an instruction of the court. We rule this is not error.
Y. Defendant complains of a statement of plaintiff’s attorney in his closing argument. As he withdrew the statement, we will not set it out. “The trial judge, having heard all the arguments, is in a much better position to know whether an improper influence has been exerted' than the appellate court can possibly be.” [Gettys v. American Car & Foundry Co., 16 S. W. (2d) 85, 322 Mo. 787.]
YT. The defendant contends that the verdict of $20,000, is excessive.
The plaintiff received his injuries on April 8, 1934. At the time of the accident, the plaintiff was about twenty-four years old and his previous health had been good. His occupation was that of a crane operator and while employed he earned between $150 and $165 a month. Due to the depression he had not been so employed for several months. But at the time of his injury he had been hauling ashes
and earning between $25 and $30 a week. After be was injured, be worked for the C.
W.
A. from December, 1933, to the middle of May, 1934, earning $20.40 a week.
The injuries that the plaintiff complained of are a healed fracture of the superior ramus of the right pelvic bone, which is. not in line but united, and a fracture at the crest of the right ilium, where it joins the spine, which is united. He has functional neurosis, which is caused by his mental attitude. His right leg is shortened one-half inch. He had pyelitis but that cleared up at the time of the trial. He has inflammation in the bladder which apparently clears up and returns. The union of the pubic bone and the ilium is firm and there was some evidence of injury to the soft structure at that part of the body. There is some limitation of the movement of the hip. He had a heavy sear on his chin, nose and the lower part of his back. There was some evidence of an injury to the deep urethea, and at the time of the trial there was some evidence of red blood cells in his urine. The plaintiff was in .a hospital at various times, a total of about thirteen weeks. There was evidence that he would be unable to do heavy manual labor. At the time of the trial he was about thirty pounds under weight. We have examined the authorities cited by both plaintiff and defendant and have come to the conclusion that this verdict should not exceed $15,000, and for that reason will reverse and remand the cause for a new trial unless the respondent will enter a
remittitur
of $5000, within ten days after the delivery of this opinion, but if the
remittitur
is so entered within that time the judgment will be affirmed, as of the date of the original judgment
Collet, Leedy
and
Says, JJ.,
concur;
Ellison, C. J.,
dissents in separate opinion;
Gantt, J.,
dissents in separate opinion;
Frank, J.,
dissents and concurs in separate dissenting opinion of
Gcmtt, J.